Opinion of Advocate General
Mr President,
Members of the Court,
A — Introduction
1. This case gives the Court the opportunity to consider in more detail the anatomy of the chicken (Gallus gallus domesticus).
2. During 1987 and 1988, the company M. Voogd Vleesimport en -export BV (hereinafter Voogd) exported various cuts of poultrymeat to non-member States in respect of which it claimed export refunds. According to the information given in the order for reference, the products in question were, on the one hand, chicken legs with (part of) the back (without the rump) and, on the other hand, front portions of the back with wings (mainly) from Italian suppliers, described by the latter (inter alia) as pipistrelli (bats). For the sake of simplicity, I will refer to those products below as legs with back portion and wings with back portion.
3. It appears that Voogd described those products in its applications for export refunds as legs and wings respectively and claimed the export refunds laid down for those products. The authorities in the Netherlands responsible for granting the refunds take the view that Voogd has to that extent given false information. Voogd therefore found itself the subject of a prosecution, which has come before the Gerechtshof (Regional Court of Appeal), The Hague.
4. The Gerechtshof has referred the following questions to the Court:
B — Analysis
5. I agree with the Commission that the questions referred for a preliminary ruling need to be reformulated. To answer Questions 1.1 and 2.1 would signify that the meaning and the content of the tariff headings cited therein were to be interpreted by the Court in an entirely abstract and general way. That cannot be the function of the Court. It is, however, obvious from the context of the questions referred that what the national court really seeks to know is under which of the tariff headings cited above a leg with back portion and a wing with back portion are to be classified. If the answer to those questions depends on the size of the back portion and/or the manner in which it is cut, the national court requests the necessary explanations from the Court of Justice on that point also.
6. In Questions 1.2 and 2.2 of the reference, the national court seeks to know, in the case of legs with back portion, under which of the tariff headings the relevant products belonged in the periods between 1 May 1987 and 1 November 1987 and between 1 January 1988 and 1 October 1988, and, in the case of wings with back portion, under which headings the products belonged in the periods between 1 February 1987 and 1 November 1987 and between 1 January 1988 and 1 September 1988.
The classification of a leg with back portion
7. On examination of the first question referred, it is clear that the national court is asking whether a leg with back portion is to be classified under one of three tariff headings, which, to simplify matters, may be summarized as: quarters, legs and others.
8. In those circumstances, one naturally turns to the customs provisions. Under Article 11(1) of Council Regulation No 2777/75 of 29 October 1975 on the common organization of the market in poultrymeat, on which the Commission regulations referred to above are based, the general rules for the interpretation of the Common Customs Tariff and the special rules for its application apply to the tariff classification of products covered by that regulation.
9. Those customs provisions are not helpful in interpreting the tariff headings Legs (and cuts thereof) and Other, but they do, as the Commission said at the hearing, contain indications as to the interpretation of the concepts halves and quarters. The Explanatory Notes to the Common Customs Tariff state that halves are to be understood as the left and right halves of the animal produced by the division of the carcase ... longitudinally along the backbone. According to those notes, the expression quarters covers hindquarters consisting of the drumstick, leg, rear part of the back and rump, as well as forequarters consisting essentially of one half of the breast with the wing attached.
10. According to the information given by the national court, the product in question here does not include any rump. It follows that this leg with back portion does not constitute a quarter and does not therefore fall within tariff heading 02.02. B. II. a) of Regulations Nos 1151/87 and 2800/87. The representative of Voogd did state at the hearing that the rump of a chicken is a very small part which is not particularly significant in relation to others. That on its own is not, however, enough to justify overlooking the requirement that a hindquarter must also include a rump. For that to be so, appropriate indications in the legal provisions would be necessary, which are lacking here. In view also of the provisions of Regulation No 3846/87, one can assume that the presence of a rump is of considerable significance for the question of export refunds.
11. Tariff heading 0207.41.71.100 of Regulation No 3846/87, on the other hand, applies to halves or quarters without rumps. That is not by chance, as the same regulation contains a further tariff heading (0207.41.11.000) for halves or quarters. The difference between the two tariff headings therefore lies in the fact that, in the one case, the rump (or a part of it) has to be present, while in the other case it does not. The leg with back portion in question here could therefore be classified under tariff heading 0207.41.71.100 of Regulation No 3846/87. That assumes that the product in question is a hindquarter, consisting of the drumstick, leg and rear part of the back.
12. Let me now turn to the question whether a leg with back portion comes into the category of leg or of Other for the purposes of the regulations referred to above. In respect of the period after the entry into force of Regulation No 3846/87, this question does, of course, only arise if the national court considers that the product in question does not constitute a quarter within the meaning given above.
13. In its written observations, the Commission referred in this connection to the current regulation on the marketing of poultrymeat. If that regulation were applicable, its contents would provide an immediate answer to the question at issue here. Article 1(2) of Regulation No 1538/91 gives the following definitions under the heading Poultry cuts:
14. The question therefore arises as to how the tariff heading leg is to be interpreted for the period in question here. At the hearing, the representative of the Commission put the essential point thus: Is a leg no longer to be regarded as a leg if it has a back portion attached?
15. The Commission has argued that an answer to the question as to the delimitation of the two tariff headings may be obtained directly from the marketing regulations on poultrymeat. The common organization of the market in poultrymeat is based on Regulation No 2777/75, which has already been mentioned. Under Article 5(1) of that regulation, the levies on cuts of poultry are to be calculated on the basis of the weight ratio between the various products. Those coefficients are also to be taken into account in the fixing of export refunds. In the Commission's opinion, to classify a product under a given tariff heading even if that product also contains other poultry parts would upset the ratio on which the calculation of the export refunds is based.
16. That argument of the Commission is hard to refute. So long as Community law provides for export refunds, and so long as different amounts are laid down for the various parts of a chicken, clear distinctions must be drawn between those parts. Otherwise the door would be wide open to abuse.
17. Nor is an answer to the question at issue here to be found in the philological considerations which Voogd's representative put forward at the hearing on the question of what is meant by leg. It is not necessary to determine in this context whether there is a distinction in Dutch between the words poot and dij. Even if there were, it would not be sufficient to determine how a leg with back portion should be treated for the purpose of granting export refunds.
18. In its judgment in the Ekro case, the Court held that the principle of the uniform application of Community law and the principle of equality both require that a provision of Community law which makes no express reference to national law for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the Community. As has been seen, however, it is not apparent from the context of the regulations and the purpose of the provisions in question exactly what the anatomical definition of a leg should be.
19. One may well suspect, however, without wishing to prejudice the outcome of the national proceedings, that such an examination will at most lead to the conclusion that a cut of poultry may still be regarded as a leg if it is attached to a small piece of back. In the present case, however, it appears to be a relatively large piece of back that remains attached to the leg. The further question therefore inevitably arises whether a cut of poultry that in the estimation of the national court is to be regarded as a leg within the meaning given above retains that quality even if it is attached to a (or, as the case may be, to an additional) piece of back.
20. In my opinion, the answer to that question should be sought in the General Rules for the interpretation of the Common Customs Tariff, as the Court has already done in Ekro. That case concerned export refunds for beef. The description under the relevant tariff heading referred to pieces of meat excluding the thin flank [and] the shin. The question therefore arose, inter alia, whether a piece of meat that also included thin flank and shin still fell under that tariff heading. The exporter in question had taken the view that a proportion of up to 20% thin flank and shin was not significant. The Court, however, referred to General Rule A 3(b) for the interpretation of the nomenclature of the Common Customs Tariff. Under that provision, mixtures ... shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable. The Court held that the determination of the essential character of such a cut of meat does not depend on a specific percentage, but must be determined in accordance with the consumer habits, trade practices and normal methods of cutting and boning beef and veal in the Member State or region concerned. These are matters to be decided by the national court.
21. That principle also applies in the present case. The national court must determine whether the portion of back which remains attached to the leg is so large that it determines the essential character of the cut of poultry as a whole. Only if that is so must that cut of poultry be classified under the tariff heading Other. Although no specific percentage can be given for that purpose, the national court is, in my opinion, perfectly entitled to take into account the fact that Voogd itself expressed the view (in its answer to a written question of the Court) that the cut in question is no longer a leg if the additional back portion constitutes more than 25% of the total weight.
22. It cannot escape notice that this solution enables an astute businessman to obtain export refunds (or higher export refunds) for poultry cuts which the legislature did not intend. Nevertheless, that seems to me to be acceptable for two reasons. First, it was open to the legislature to prevent that from happening by means of a clear definition of the cuts in question. Secondly, that result applies only to the past, as the legislature has since removed the uncertainty. I allow myself the additional observation (without wishing thereby to prejudice the decision of the Netherlands court) that it seems to me very doubtful in the present case, in view of the uncertainties and the lack of clarity I have described, whether Voogd can in any way be accused of culpable conduct.
The classification of wings with back portion
23. With regard to the classification of wings with back portion, the question arises whether this product is to be regarded as whole wings, with or without tips within the meaning of Regulations Nos 1151/87 and 3846/87, or whether it comes under the heading Other. I shall to a large extent be able to refer here, mutatis mutandis, to my earlier exposition.
24. The question what constitutes a wing is also not defined in the regulations at issue here. It should be mentioned here also, for the sake of completeness, that the current regulation is free of that defect. Article 1(2) of Regulation No 1538/91 gives under the heading Poultry cuts:
25. Here also, and for the reasons already given, it is for the court mailing the reference to determine the precise anatomical definition of wings for the period in question. The national court must also determine whether the back portion attached to the wings is so large that it determines the essential character of the poulty cut as such. In my personal opinion, there is much to be said here for classifying the product in question under the tariff heading Other. A final judgment on that question is of course a matter for the national court alone.
C — Conclusions
26. I therefore propose that the Court give the following answers to the questions submitted by the national court:
1 Original language: German.
2 Regulation (EEC) No 2303/87 of 30 July 1987 (OJ 1987 L 209, p. 56).
3 Regulation (EEC) No 3205/87 of 27 October 1987 (OJ 1987 L 306. p. 7).
4 Regulation (EEC) No 3865/87 of 22 December 1987 (OJ 1987 L 363, p. 40).
5 Regulation (EEC) No 158/88 of 20 January 1988 (OJ 1988 L 18, p. 12).
6 Regulation (EEC) No 717/88 of 18 March 1988 (OJ 1988 L 74, p. 37).
7 Regulation (EEC) No 1792/83 of 24 June 1988 (OJ 1988 L 158, p. 24).
8 Regulation (EEC) No 2882/88 of 19 September 1988 (OJ 1988 L 260, p. 37).
9 OJ 1975 L 282, p. 77.
10 Before 1 January 1988, the Explanatory Notes to the CCCN (Customs Cooperation Council Nomenclature) applied. Since the introduction of the Combined Nomenclature on 1 January 1988, the Explanatory Notes to the Combined Nomenclature have applied. Both texts accord with each other for the relevant period on the question at issue here.
11 Sec the final part of paragraph 9, above.
12 The problem is solved by the current regulation on the marketing of poultrymcat. Council Regulation (EEC) No 1906/90 of 26 June 1990 (OJ 1990 L 173, p. 1) laid down marketing standards for poultry. Detailed rules for implementing that regulation were laid down by Commission Regulation (EEC) No 1538/91 of 5 June 1991 (OJ 1991 L 143, p. 11). In Article l(2)(a) a half is defined as half of the carcase, obtained by a longitudinal cut in a plane along the sternum and the backbone. A quarter is a half divided by a transversal cut (Article l(2)(b))- Those provisions were, however, enacted only after the period in question here and cannot therefore be taken into consideration (sec paragraph 13, below).
13 See footnote 11, above.
14 See Commission Regulation (EC) No 3567/93 of 21 December 1993 amending Regulation No 3846/87 (OJ 1993 L 327, p. 1).
15 Judgment in Case 327/82 Ekro v Proditktschap voor Vee en Vlees [1984] ECR 107, paragraph 22.
16 Sec S. Scholtyssek: Geflugel (Poultry), Stuttgart, 1987, p. 91 (with schematic illustrations). This work was kindly made available to me by the Lycée Technique Agricole in Ettelbruck.
17 I use that expression here (without any claim to technical accuracy) to denote a leg cut off at the joints.
18 If necessary, the calculation can be made in accordance with the average ratio between their commercial value. Those coefficients arc laid down by Commission Regulation (EEC) No 3011/79 of 20 December 1979 (OJ 1979 L 337, p. 65).
19 Second paragraph of Article 2 of Council Regulation (EEC) No 2779/75 of 29 October 1975 laying down general rules for granting export refunds on poultrymeat and criteria for fixing the amount of such refunds (OJ 1975 L 282, p. 90).
20 It may be pointed out here that the Commission's representative took the view at the hearing that the products exported by Voogd were intentionally cut so as to include a back portion.
21 See paragraph 14 , above.
22 Ekro (cited in footnote 14, above) paragraph 11.
23 Ekro (cited in footnote 14, above) paragraph 13.
24 Ekro (cited in footnote 14, above) paragraph 15.
25 See footnote 14.
26 Ekro (cited in footnote 14, above) paragraph 20.
27 The words quoted arc taken from the 1987 version of the Common Customs Tariff, as set out in Council Regulation (EEC) No 3618/86 of 24 November 1986 (OJ 1986 L 345, p. 1).
28 Ekro (cited in footnote 14, above) paragraph 24.
29 It should be reiterated here that the determination of the exact anatomical boundaries of a leg for this purpose is a matter for the national court (see paragraph 1S, above).
30 Reference should also be made to General Rule for the interpretation of the Combined Nomenclature A 3c: When goods cannot be classified by reference to...3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
31 In respect of the last-mentioned tariff heading, questions 2.2 and 2.3 of the reference merely allude to point 1.1(c) of the questions referred and thereby) by implication, to Regulations Nos 1151/87 and 2800/87. One may, nevertheless, assume that the national court also had the corresponding tariff heading used by Regulation No 3846/87 in mind. Since it may well have been an oversight, which is in no way surprising in view of the scope of the questions referred, I will refer in my exposition to the last-mentioned regulation where appropriate. In any event, there is no distinction in the subject-matter.
32 See footnote 11, above.
33 See footnote 13, above.
34 See paragraph 18, above.